Bond v. City of Pittsburgh

• Decision Date: 13 November 1951
• Citation: 368 Pa. 404,84 A.2d 328
• Parties: BOND et al. v. CITY OF PITTSBURGH.
• Court: Pennsylvania Supreme Court

84 A.2d 328

368 Pa. 404

BOND et al. v. CITY OF PITTSBURGH.

Supreme Court of Pennsylvania.

November 13, 1951

Action by Frances Bond, and husband, against the City of Pittsburgh for injuries sustained by wife in a fall allegedly caused by a defect in the curbing of a city street. Defendant brought in as additional defendant the Society of St. Vincent De Paul, the owner of the abutting premises. The Court of Common Pleas of Allegheny County as of July Term, 1948, No. 2561 Russell H. Adams, J., entered judgment for plaintiffs and granted the additional defendant's motion for judgment notwithstanding the verdict and defendant appealed from both judgments. The Supreme Court, Nos. 41, 42, and 43, March term, 1951, Stern, J., held that the doctrine of immunity of charitable organizations from tort liability includes actions of assumpsit brought by a municipality under a claim of indemnity as well as tort actions brought by injured persons and that the awards to plaintiffs were not excessive.

Affirmed.

Ladner, Jones, and Chidsey, JJ., dissented.

Anne X. Alpern, City Solicitor, Thomas E. Barton, Asst. City Solicitor, Pittsburgh, for appellant.

John Wirtzman, Pittsburgh, for Society of St. Vincent De Paul, additional defendant.

Arthur M. Grossman, Pittsburgh, for appellee.

Before DREW, C. J., and STERN, JONES, BELL, LADNER and CHIDSEY, JJ.

HORACE STERN, Justice.

If a pedestrian is injured in a fall caused by a defect in the curbing of a city street and recovers damages in a suit against the municipality, can the latter maintain an action over for indemnity against a charitable organization which owns and occupies the abutting property? That is the principal question involved in the present appeals.

The wife-plaintiff, Frances Bond, fell one night in front of premises 1612 Webster Avenue, Pittsburgh, where the curbstone and sidewalk had worn away leaving a hole bordered at its outer edge by a broken steel band which had originally lined the curb; the hole was twelve inches long, ten to twelve inches wide and eight or nine inches deep. She and her husband, Vollie Bond, brought suit against the City of Pittsburgh for damages. The City brought in as additional defendant the Society of St. Vincent de Paul, the owner of the premises, which it occupied exclusively for charitable purposes. A verdict in the sum of $13,500 for the wife and $2,500 for the husband was rendered for plaintiffs against the City and for the City over against the Society; the court reduced the wife's verdict to $12,000. The Society filed a motion for judgment n. o. v. which was granted. The City now appeals from the judgmants entered against it in favor of the plaintiffs on the ground that the verdicts, even as thus reduced, were excessive, and it appeals also from the judgment entered in favor of the Society.

We consider first the question as to the amount of the verdicts. The wife-plaintiff was 29 years of age at the time of the accident. She worked out as a domestic by the day. She lost over $2,000 in earnings in the time between the accident and the trial and she will suffer also a substantial future loss because of inability to do the same hard work as before. She sustained a severe crippling injury consisting of a rupture of a ligament of the knee which resulted in excessive lateral motion of the joint and made it necessary for her leg to be placed in a splint for several months. Finally a major operation was required, consisting of the opening of the knee, the repair of the ligament, and the sewing of some of the muscles. Her leg was then kept in a cast for about ten weeks, after which a knee support was prescribed for her which she has ever since been obliged to wear. She suffered considerable pain and there still remains some abnormal swelling of the joint; according to her doctor there is not likely to be any further improvement. As far as the husband is concerned, his actual expenses amounted to $1,034 and he will probably be required to expend additional sums in the future for the care of his wife's injury. On the whole, we are not convinced that the verdicts, the one of them as now reduced, are excessive.

This brings us to the question of the City's right to recover from the Society of St. Vincent de Paul.

Notwithstanding the violent criticisms that have been directed by academic legal writers against the doctrine of the immunity of charitable organizations from tort liability, and notwithstanding also the fact that there is considerable conflict in the judicial decisions on the subject among the several States, our own Commonwealth was, from the earliest times, stood firm in its adherence to the principle of immunity. For confirmation of that assertion it is only necessary to refer to such cases as Fire Insurance Patrol v. Boyd, 120 Pa. 624, 15 A. 553,1 L.R.A. 417; Gable v. Sisters of St. Francis, 227 Pa. 254, 75 A. 1087; Siidekum, Administrator, v. Animal Rescue League of Pittsburgh, 353 Pa. 408, 45 A.2d 59; Betts v. Young Men's Christian Association of Erie, 83 Pa.Super. 545; Paterlini v. Memorial Hospital Association of Monongahela City, 3 Cir., 247 F. 639. In the Gable case it was said, 227 Pa. at page 258, 75 A. at page 1088,‘ It is a doctrine too well established to be shaken, and as unequivocally declared in our own state as in any other, that a public charity cannot be made liable for the tort of its servants.’ Surely a doctrine so deeply embedded in the structure of our common law should not lightly be overturned in violation of the rule of stare decisis. Principles of the common law are not established or developed arbitrarily; they congeal during the course of the years from the fluidity of recurrent judicial decisions which presumably reflect the sentiments and social values of the community. Measured by that standard there is no class of institutions more favored and encouraged by our people as a whole than those devoted to religious or charitable causes. Public minded benefactors are not likely to have their generous impulses encouraged if advised that some janitor, watchman or other employe of a charitable organization who carelessly fails to note the displacement of a brick or stone in a pavement may thereby bring about the loss of all the property and funds which the donors had sought to devote to the common good. If and when there is to be any change in the doctrine of the immunity of charitable institutions from tort liability, it ought to be effected, not by the courts, but by the Legislature, which is, of course, the ultimate tribunal to determine public policy. Incidentally, it will be remembered that this is not the only class of cases in which the victim of an accident may not recover damages from other than the individual who actually committed the tort; for instance, no such recovery is permitted where the accident results from the negligence of the agent or servant of a municipality while engaged in the performance of a governmental function.

It being assumed, therefore, as axiomatic that plaintiffs in this case could not have recovered damages had they brought action directly against the Society of St. Vincent de Paul, we are now called upon to decide whether, such recovery having been had from the municipality, the latter should be allowed to reimburse itself by recovery from the Society. It must be immediately obvious that if such a recovery were allowed the immunity of charitable organizations in cases of this nature would thereby become merely theoretical, because every plaintiff would bring suit against the municipality and it in turn against the charity, so that the result which the law now frowns down upon would thus be accomplished merely through the device of instituting two actions instead of one. What is the real basis upon which the immunity principle rests? It is, as expressed in Fire Insurance Patrol v. Boyd, supra, 120 Pa. at page 647, 15 A. at page 557, that the funds specially contributed for a public charitable purpose should not be misapplied to objects not contemplated by the donors, for a public charity is but a trustee and is bound to apply its funds in furtherance of the charity and not otherwise. It was also stated in Gable v. Sisters of St. Francis, supra, 227 Pa. at page 258, 75 A. at page 1088, that the doctrine rests fundamentally on the fact that liability, if allowed, would lead inevitably to a diversion of the trust funds from the purposes of the trust. That being so, it is evident that the evil which the doctrine aims to avoid would result in exactly the same manner if the trust assets of the charity were taken under a judgment obtained by the municipality as under a judgment obtained directly by the victim of the accident. Since, therefore, the reason for the enforcement of the rule exists equally in the one situation as in the other, the rule itself ought not be changed merely because of a difference in the process whereby recovery out of the assets of the charity is sought to be effected. To hold otherwise would be to ignore both the social philosophy and the practical considerations upon which the principle of immunity is founded. Resting as it does upon a public policy which aims to keep the funds of the institution intact in order to accomplish the larger ends for which they were contributed, that policy would be none the less defeated if its funds were to be siphoned off by an action of assumpsit brought by the municipality under a claim of indemnity instead of by a tort action brought by the injured person. To recognize such a distinction as controlling, therefore, would be to magnify form at the expense of substance, legalism at the expense of realism.

The City makes much of the point that the Act of May 16, 1891 P.L. 75, § 11, 53 P.S. § 771, provides that the...